Cayla McVay v. State

• Court: Court of Appeals of Texas
• Decided: October 2, 2020
• Docket: 06-20-00094-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-20-00094-CR

CAYLA MCVAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 5th District Court Bowie County, Texas Trial Court No. 19F1132-005

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION

Cayla McVay has filed an untimely notice of appeal from a conviction of the third-degree

felony offense of possession of a controlled substance and the resulting ten-year sentence.1 We

dismiss the appeal for want of jurisdiction.

The judgment of conviction in this matter indicates that McVay’s sentence was imposed

on April 16, 2020, and that her notice of appeal was filed on August 12, 2020. There is nothing

in the appellate record to indicate that McVay filed a motion for new trial. In the absence of a

timely motion for new trial, McVay, to perfect her appeal, was required to file her notice of

appeal within thirty days of the date sentence was imposed, or on or before May 18, 2020. See

TEX. R. APP. P. 26.2(a)(1). The notice of appeal, therefore, was untimely.

The Texas Court of Criminal Appeals has expressly held that, without a timely filed

notice of appeal, we cannot exercise jurisdiction over an appeal. See Olivo v. State, 918 S.W.2d

519, 522 (Tex. Crim. App. 1996); see also Slaton v. State, 981 S.W.2d 208, 209 n.3 (Tex. Crim.

App. 1998) (per curiam).

We notified McVay by letter that her notice of appeal appeared to be untimely and that

the appeal was subject to dismissal for want of jurisdiction. We gave McVay ten days to respond

to our letter and to demonstrate how we had jurisdiction over the appeal notwithstanding the

noted defect. Counsel for McVay filed a response indicating that McVay filed her pro se notice

of appeal in error, as she had previously waived her right of appeal pursuant to the terms of a

plea bargain. As a result, McVay concedes that this case is subject to dismissal.

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c). 2 Because McVay has not timely perfected her appeal and has otherwise waived her right

of appeal pursuant to a plea bargain, we dismiss the appeal for want of jurisdiction.

Scott Stevens Justice

Date Submitted: October 1, 2020 Date Decided: October 2, 2020

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